Silence is not necessarily golden

Gordon Exall considers the practical issues that arise from the principle that a court can draw adverse inferences from a party’s failure to adduce evidence on an issue.

“He who alleges must prove”

This is the maxim that underlines civil evidence. Where a party bears the burden of proving something, for instance negligence, then in most cases the burden of proof lies with the party who has the burden of proof. The evidence has to be in the witness statement, or by some other admissible form, in order that the party can prove their cases.

Silence may lead to the court drawing adverse inferences

However, there are circumstances where the courts can draw adverse inferences from a party’s failure to adduce evidence in response. Litigators who have the burden of proof, or have to adduce evidence in response, must be aware of this. It is dangerous for a party to assume that they need not respond because the opposing party has the burden of proof.

A party who elects not to call evidence can put themselves at some risk. If the opposing party has put forward a prima facie case, then a court may be able to draw adverse inferences.

Once a prima facie case is made out then the defendant may have to respond

One of the key modern cases on this point is Wiszniewski v Central Manchester Health Authority [1998] PIQR P324.This was a clinical negligence case where the defendant served a witness statement from a treating doctor which was silent on various key points. The defendant then attempted to use that statement under the Civil Evidence Act but without calling the witness to be cross-examined. The judge made it clear that, if the doctor was not called, he would draw adverse inferences. The claimant succeeded and the defendant appealed.

The Court of Appeal considered the inferences that could be drawn and considered authorities. It concluded:

“(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.

(2) If a court is willing to draw such inferences, they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.

(3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.

(4) If the reason for the witness's absence or silence satisfies the court, then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.”

The line of authority

The line of authority in question was long-standing.

In McQueen v Great Western Railway Company (1875) L.R. 10 Q.B. 569, Cockburn C.J. said at p. 574: “If a prima facie case is made out, capable of being displaced, and if the party against whom it is established might by calling particular witnesses and producing particular evidence displace that prima facie case, and he omits to adduce that evidence, then the inference fairly arises, as a matter of inference for the jury and not a matter of legal presumption, that the absence of that evidence is to be accounted for by the fact that even if it were adduced, it would not displace the prima facie case. But that always presupposes that a prima facie case has been established; and unless we can see our way clearly to the conclusion that a prima facie case has been established, the omission to call witnesses who might have been called on the part of the defendant amounts to nothing.”

In Chapman v Copeland (1966) 110 S.J. 569 a defendant driver did not call evidence in a case involving a fatal road traffic accident where the plaintiff widow had called evidence of brake and tyre marks made by his car on the road surface, and this court was willing to infer in his absence that he had been at fault.

Salmon L.J. said that: *p338 “… as the law now stood there was no obligation on the defendant at the end of the widow's case to give evidence. However, if he chose not to do so, he could not complain if, on a very narrow balance of probability, the evidence justified the court in drawing the inference of negligence against him … Where the defendant, quite legitimately, in a case in which there was nothing but accident mathematics, chose not to give evidence to the contrary, he could not complain.”

In Herrington v British Railways Board [1972] A.C. 877, Lord Diplock considered the issue when the plaintiffs had adduced evidence that a chainlink fence four feet high, which ran along the boundary between a railway line equipped with a live electric rail and a public open space where children gathered to play, was pressed down to a height of no more than ten inches from the ground at a point where it was approached by a well-trodden path across the meadow.

“The appellants, who are a public corporation, elected to call no witnesses, thus depriving the court of any positive evidence as to whether the condition of the fence and the adjacent terrain had been noticed by any particular servant of theirs or as to what he or any other of their servants either thought or did about it. This is a legitimate tactical move under our adversarial system of litigation. But a defendant who adopts it cannot complain if the court draws from the facts which have been disclosed all reasonable inferences as to what are the facts which the defendant has chosen to withhold.

"A court may take judicial notice that railway lines are regularly patrolled by linesmen and gangers. In the absence of evidence to the contrary, it is entitled to infer that one or more of them in the course of several weeks noticed what was plain for all to see. Anyone of common sense would realise the danger that the state of the fence so close to the live rail created for little children coming to the meadow to play. As the appellants elected to call none of the persons who patrolled the line there is nothing to rebut the inference that they did not lack the common sense to realise the danger. A court is accordingly entitled to infer from the inaction of the appellants that one or more of their employees decided to allow the risk to continue of some child crossing the boundary and being injured or killed by the live rail rather than to incur the trivial trouble and expense of repairing the gap in the fence.”

The court can make extremely robust assumptions from the silence

In appropriate cases a judge is entitled to make robust assumptions from the silence. So in Rock Nominees v RCO Holdings [2003] EWHC 936 (CH) the court considered an application for unfair prejudice in relation to shareholding. The main witness on behalf of the applicant had most of his evidence struck out as being inadmissible, and because it was comment. The applicant himself put forward no evidence at all. The judge felt able to draw adverse comments in relation to this:

“At the start of the trial I adverted to the decision of the Court of Appeal in Thompson v Bryant Homes Northern [2002] EWCA Civ 1079 .

88. That case considered the inference to be drawn from the absence of a witness. Although in that decision the court's conclusion was that an explanation had been given to explain the absence, in the absence of any proper explanation adverse inferences ought to be drawn by the court, see Wisniewski v Central Manchester Health Authority (Court of Appeal 1 April 1998) .

89. In the absence of an explanation (and none has been given beyond Mr Potts QC's submission that his evidence is not relevant, which I reject) Lord Ashcroft's absence is significant. I conclude from his absence that (1) he believed £2.80 is a very full price representing the value of the shares in Rock, (2) that he misled ISS and RCO in May 2000 as to his intentions, (3) that he deliberately acquired Rapid Reef shares on 28 th June to block the squeeze out by ISS and (4) the reason why he did not talk and the reason why he acquired the shares was to force ISS into paying him a large unmeritorious amount of money to enable it to achieve its legitimate commercial expectations, when it spent the large amount of money it did in acquiring RCO's shareholding. To my mind this is unacceptable conduct. It is particularly galling that such conduct is then used as a platform to present a Section 459 Petition alleging that his interests as a minority shareholder have been unfairly prejudiced. As Peter Gibson LJ said in Re Ring Tower (no. 2) [1989] BCLC 427 at 437 A, the jurisdiction should be carefully controlled to prevent it from becoming an instrument of oppression. It is difficult to see how this Petition can be described as anything other than an instrument of oppression, designed to unlock for Lord Ashcroft monies, which bear no relation to the value of the shares and bear no relation to any commercial or legitimate interest he would have in the shares in RCO. Euphemistically this practice (which I understand is a not unheard of practice in the City) is described as “green mail”. The proper word to my mind is blackmail. It is the kind of thing, which brings the City into disrepute, to my mind. The purpose of the City is to raise finance to enable companies to develop businesses for their own and the country's well being. Where matters are dealt with in speculation and profits are made, which are then gathered off shore, when there is no merit and no exposure to the kind of risks associated with companies, that to my mind is not legitimate.

90. These are the reasons why Lord Ashcroft will not present himself to this court for cross examination. He was not content with a small £250,000.00 (two hundred and fifty thousand pound) profit, earned in a matter of weeks. He now seeks to extract millions from the Respondents. He does not stop there however. I have no doubt that if the Petition was successful he would then seek to extract further millions through the Rapid Reef shareholding. All of this extraction is sought merely as a device to block the legitimate expectations of the overwhelming majority of the shareholders in the company and against the belief of all shareholders that £2.80 represented a good price for the shares, and his own belief that it represented such a fair price and against the backcloth of him giving a clearly misleading impression that he was out of the race and giving ISS a legitimate expectation that he was no longer opposed to them acquiring 100% shares in RCO.”

The application of this in a personal injury context

In Keefe v The Isle of Man Steam Packet Company [2010] EWCA Civ 683 the defendant, in breach of statutory duty, failed to measure noise levels at the claimant’s place of work. The defendant argued that that the claimant could not prove that he was exposed to undue noise. This argument was rejected by Longmore LJ, who said:

“19. If it is a defendant’s duty to measure noise levels in places where his employees work and he does not do so, it hardly lies in his mouth to assert that the noise levels were not, in fact, excessive. In such circumstances the court should judge a claimant’s evidence benevolently and the defendant’s evidence critically. If a defendant fails to call witnesses at his disposal who could have evidence relevant to an issue in the case, that defendant runs the risk of relevant adverse findings see British Railways Board v Herrington [1972] AC 877, 930G. Similarly a defendant who has, in breach of duty, made it difficult or impossible for a claimant to adduce relevant evidence must run the risk of adverse factual findings. To my mind this is just such a case.

20. This has been accepted law since Armory v Delamirie (1721) 1 Strange 505 the famous case in which a chimney sweep found a jewel in a chimney and left it with a pawnbroker for valuation. The pawnbroker, in breach of duty, failed to return it and could not be heard, when sued, to assert that the chimney sweep could not prove its value. The court awarded the highest sum realistically possible. A bailee’s duty towards his bailor is, of course, different from an employer’s duty to his employee but breach of the latter duty is not necessarily less serious than breach of the former.”

Silence by one party does not displace the need for the other party to provide evidence to prove its case

It is important to note that, for these principles to apply, a party has to set up a prima facie case which requires a response.

In Wiesnewski the Court referred to the unreported case of Hughes v Liverpool City Council (Lexis transcript, March 11, 1988, C.A.). A tenant sued her landlords, the Liverpool City Council, for breach of an implied covenant in her lease because the gas boiler in her flat had exploded when she tried to light the pilot light. The only evidence she could adduce to the effect that the council knew about the defect was the fact that her flat had been inspected by one of its representatives when she had taken it over two months earlier. The defendants called no evidence. May L.J. upheld the judge in finding that the boiler would have been inspected at that time and that the defect would have been present then, he was not willing to uphold the judge's further inference that as a result of the inspection, the defendants had been put on inquiry at the time that a repair to the boiler was needed.

He said: “Although I have every sympathy with Mrs Hughes, I do not think that that is the correct approach in law to this matter. The learned judge had to decide this case on the evidence. He could only draw inferences from the evidence and from his findings of primary fact on that evidence. He was not, in my opinion, entitled to draw an inference or inferences from the mere failure to call a witness. The onus was on the plaintiff to make out her case. If there had been only a scintilla of evidence called on her behalf tending to support the fourth inference to which I have referred, then in the absence of any contrary evidence, because no witness was called for the defendants, the judge would have been entitled to find even that scintilla sufficient to make out the plaintiff's claim.”

A “scintilla of evidence”

The important point to note here is the finding that “only a scintilla of evidence” was needed for the claimant to establish her case. In the absence of any evidence the burden was not established. This demonstrates that it is not enough for a claimant to rely on the defendant’s silence. Some thought has to be given to obtaining evidence to set out a prima facie case.

The rule does not reverse the burden of proof

A similar conclusion was reached in Micklewright v Surrey County Council [2011] EWCA Civ 922 where the claimant’s husband had been killed by a falling branch from a tree. The defendant had not preserved the tree branch, nor did it carry out any immediate investigation into the cause of the fall. The Court of Appeal agreed that the Keefe principles applied and that the claimant’s evidence should be viewed benevolently. However it did not interfere with the decision of the first instance judge that the evidence did not support the view that the defect with the branch would not have been obvious.

“This failure to conduct an immediate and thorough investigation into the cause of the branch's failure made, it was said, the case analogous to Keefe v Isle of Man Steam Packet Co [2010] EWCA Civ 683 in which Longmore LJ at para 19 in the context of a Defendant's failure to make or keep proper records said that: “…the Court should judge the Claimant's evidence benevolently and the Defendant's critically.”

"20. In my judgment that is a correct approach. The Claimant has been put at a substantial disadvantage in advancing her claim by the manner in which the Defendant dealt with the remnants of the branch once it had fallen. In those circumstances I take the view that the proper way to approach the evidence is that suggested by Longmore LJ. This does not however reverse the burden of proof or relieve the Claimant of the need to prove her claim on the balance of probabilities.”

Summary: practical points

• In appropriate cases a party’s failure to call a witness, or self-inflicted inability to call evidence, can lead to robust assumptions being made against that party.
• This is something that must be considered by anyone preparing evidence, usually – but not inevitably – for a defendant. It may not enough to require a party to prove their case. Once a prima facie case has been made out then adverse inferences can be drawn if a party fails to adduce evidence in reply.

Gordon Exall is a barrister at Zenith Chambers. He can be contacted by This email address is being protected from spambots. You need JavaScript enabled to view it..